Roadway Express, Inc.

302 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Roadway Express, Inc. and Konstantine Petros. Case 8-CA-14982-2 15 April 1986 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS JOHANSEN AND BABSON On 17 February 1984 the Board issued a Deci- sion and Order in this proceeding' in which it found that the Respondent had engaged in unfair labor practices violative of Section 8(a)(1) of the Act and ordered that the Respondent cease and desist therefrom and take certain affirmative action. The Respondent filed a petition in the United States Court of Appeals for the Sixth Circuit for review of the Board's Decision and Order, and the Board filed a cross-petition for enforcement of its Order. On 21 January 1985 the court issued its opinion in Lawson Co. v. NLRB,2 holding, inter alia, that the Board erred in failing to apply the framework for analysis set forth in Wright Line,3 to an alleged violation of Section 8(a)(1) that turned on employ- er motivation. In light of the court's opinion in Lawson Co., the Board petitioned the court to remand the instant case to allow it to reconsider the legality of the Respondent's removal of break- room bulletin boards under the Wright Line test. The Board's motion for remand was granted. Sub- sequently, the Respondent and the General Counsel filed statements of position with the Board. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. Upon reconsideration of the record as a whole4 and the statements of position, the Board has decid- ed to reaffirm its previous Order for the following reasons.5 i 268 NLRB 982 (1984) Members Johansen and Babson were not members of the Board at the time the Board's original Decision and Order issued 2 753 F 2d 471 (6th Cir 1985) 3 251 NLRB 1083 (1980), enfd as modified 662 F 2d 899 (1st Cir 1981), cert denied 455 U S 989 (1982) 4 In its initial decision in this case, the Board failed to state that the General Counsel filed a brief in opposition to the Respondent's excep- tions Shortly after the issuance of the Board's initial Decision and Order, the Respondent filed a motion with the Board to amend the notice that the Respondent had been ordered to post as part of the remedy for its unfair labor practice The Board denied the motion as lacking in merit The Respondent has renewed its argument in this regard in its statement of position We again find the Respondent's position to be lacking in merit. A. Facts In accordance with the collective-bargaining agreement between the Respondent and Local 20, International Brotherhood of Teamsters (the Union), the Respondent provided a bulletin board for the exclusive use of the Union. This bulletin board was glass enclosed and kept locked. The Re- spondent maintained a similar glass-enclosed, locked bulletin board for its official use. Addition- ally, there was an unenclosed bulletin board in each of the two breakrooms at the Respondent's terminal . These breakroom bulletin boards, about 4 by 5 feet, had been in use for about 6 years prior to the 1981 events in question, and were used by the employees for general news items, such as notices of upcoming events, items for sale, meetings, etc. These boards were also used to post notices of union business and events. According to Union Stewards James DeVero and Konstantine Petros (the Charging Party), to the best of their knowl- edge the Respondent had no rules about what ma- terial could be posted on these boards, and employ- ees did not have to request permission to post items on them. In late 1979, Ivan Hoffman became the terminal manager. Thereafter, tension increased between management and the employees. Beginning in the fall of 1979 and continuing through the time of the April 1981 events in question here, the comment "Ivan sucks" began frequently to appear on the walls, on freight cartons, on tow motors, and on restroom walls. Also during this time, this com- ment was sometimes written on documents posted on the breakroom bulletin boards. As seen, notices relating to union matters were sometimes posted on the breakroom bulletin boards. Starting in March 1980, approximately once a month Charging Party Petros began to post Teamsters for a Democratic Union (TDU) litera- ture on these boards. Petros described this material as advocating membership in TDU or informing employees about their "legal rights and contractual rights." Petros never attempted to post TDU litera- ture on the glass-enclosed bulletin board used for official union business. Most of the TDU literature posted by Petros was clearly identified as such. On 29 January 1981,6 Petros posted a notice on the breakroom bulletin boards reporting on a 25 January resolution that was passed at the Roadway Express employee Local 20 unit meeting held at Local 20's union hall. The resolution expressed op- position to the Respondent's use of production cards at the instant terminal, and resolved, inter 6 All dates subsequently referred to are in 1981 , unless otherwise speci- fied 279 NLRB No. 41 ROADWAY EXPRESS alia, that Local 20 expressly support a Pennsylva- nia sister local in the latter's efforts to obtain a strike sanction from the International Union to stop the Respondent's use of production cards and that Local 20 itself send a telegram to the International Union, with "a copy to be posted at the [instant] Roadway Terminal in Toledo, Ohio, supporting the call for strike sanction at Roadway to stop the production cards."7 Terminal Operations Manager Paul Ray removed this notice from the outbound breakroom bulletin board later the same day. He explained to Petros that he thought that bulletin board "was to be for official company business." Petros pointed out that the other (inbound) break- room bulletin board had nonofficial items posted on it, and Ray replied that the inbound breakroom bulletin board "was for us to use as we saw fit." Petros appealed Ray's removal of the notice to As- sistant Terminal Manager Dean Schuler, who told Petros that "both bulletin boards were company bulletin boards and should be used only for official company business." The next day, Petros asked Ray if he could post any TDU material on the bul- letin board; Ray said no, referring to Schuler's statement the day before. On 27 February Petros filed an unfair labor prac- tice charge alleging that the Respondent violated Section 8(a)(1) of the Act by its removal of the 29 January notice. Petros subsequently withdrew the charge in late April on the basis of what he testi- fied was an agreement by the Respondent that he could post TDU material as long as it was clearly identified as such. During the period between the Respondent's removal of the 29 January notice from the bulletin board and Petros' late April with- drawal of the unfair labor practice charge, he posted no union or TDU material. On 23 April Petros posted notices in the break- room bulletin boards advocating defeat of a pro- posal to amend the Union's bylaws. He then in- formed Terminal Operations Manager Ray that he had posted these notices in accordance with what Petros understood to be the recent agreement per- mitting the posting of clearly marked TDU materi- al on the breakroom bulletin boards. Ray told Petros that he was unaware of any such agreement. About 25 April, Terminal Manager Ivan Hoff- man visited one of the breakrooms. He testified: I went into the breakroom and I had seen a piece of a newspaper clipping. That was a clipping about a homocide [sic] with a supervi- sor or an employer was shot and killed as a There is no indication on the notice that it was authored by the TDU, all references are to Local 20 Although Petros' testimony implies that this was actually a TDU notice, the record is ultimately unclear in this regard 303 result of a labor dispute and under there it said "Ivan you're next." It infuriated me at the time. I took it and grabbed it and threw it down. After consulting with his attorney, Hoffman or- dered that the bulletin boards be removed. When Petros noticed that the breakroom bulletin boards had been removed, he asked Hoffman why. According to Petros: [H]e stated to me he had to have free speech. Also, that he's a stockholder in the company and he's tired of seeing things that said bad things about the company and also he didn't want to see things calling for strikes against Roadway Express and this is just like putting these items in his house. . . . He also stated to the effect that he didn't like the idea of seeing things like "Ivan sucks" and "Ivan you're next."8 B. Analysis and Conclusion In Wright Line, supra, the Board adopted a test for evaluating cases alleging violations of Section 8(a)(3) of the Act or, as in the instant case, a viola- tion of Section 8(a)(1) turning on the motive of the employer. Pursuant to the Wright Line test, the General Counsel must make a prima facie showing sufficient to support the inference that protected conduct was a motivating factor in the employer's decision to take the allegedly unlawful action. If the General Counsel makes such a prima facie showing, the burden of going forward with the evidence shifts to the employer to show that it would have taken the same action even in the ab- sence of the protected conduct. Here, we find that the General Counsel has made a prima facie showing that protected con- duct-the posting of TDU and general union mate- rial on the breakroom bulletin boards-was a moti- vating factor in the Respondent's decision to remove the bulletin boards. More specifically, we note first that Petros' 29 January notice advocating a strike sanction in protest of the Respondent's use of production cards was immediately removed from the breakroom bulletin boards by Terminal Operations Manager Ray, who (as subsequently confirmed by Assistant Plant Manager Schuler) told Petros that (contrary to 6 years' past practice) the breakroom bulletin boards were for official s Petros' testimony is corroborated by Hoffman, who testified, I told [Petros) "We have to allow for freedom of speech. I am a stockholder in the company and I find it very objectionable when individuals post notices for unauthorized strikes against my compa- ny, when they write inflammatory remarks about myself, about the supervisors that work for the company " 304 DECISIONS OF NATIONAL LABOR RELATIONS BOARD company business only. We also note that, the next day, Ray specifically denied Petros permission to post TDU material on the breakroom bulletin boards. Additionally, we note that the bulletin boards were removed almost immediately follow- ing Petros' resumption (after a 3-month hiatus) of his posting of union and TDU material. Finally, we note that Plant Manager Hoffman referred specifi- cally to the 29 January notice ("things calling for strikes against Roadway Express") in explaining to Petros why the bulletin boards had been taken down. Thus, we find that the General Counsel has established a prima facie case that the Respondent removed the breakroom bulletin boards because it wanted to prohibit the posting of union and TDU material. In agreement with the judge, we find that the Respondent has failed to establish that it would have removed the breakroom bulletin boards even in the absence of the posting of union and TDU material on them. The Respondent asserts that it removed the boards to stop the publication of dis- paraging and threatening remarks aimed at Termi- nal Manager Hoffman. However, the posting of such disparaging remarks had been commonplace throughout the plant since late 1979, including on the breakroom bulletin boards, and it was not until the day of the 29 January strike sanction notice that the Respondent limited the breakroom bulletin boards to "official company business only." More- over, the Respondent did not actually remove the bulletin boards until shortly after Petros resumed posting TDU material on them. Thus, notwithstanding Hoffman's understandably hostile reaction to the "Ivan you're next" annota- tion on the newspaper article, we are convinced that the timing of the Respondent's initial limiting of the bulletin boards to "official company business only" immediately following the 29 January post- ing, the Respondent's subsequent complete removal of the boards shortly after the resumption of TDU posting on 23 April, and Hoffman's reference to TDU material in explaining the removal of the boards establish that the Respondent would not have taken down the bulletin boards were it not for the continued posting of union and TDU relat- ed material on the bulletin boards. Accordingly, we find that the Respondent's removal of the bulle- tin boards was in violation of Section 8(a)(1) of the Act, as alleged. ORDER The National Labor Relations Board reaffirms its Order previously issued on 17 February 1984 and orders that the Respondent, Roadway Express, Inc., Toledo, Ohio, its officers, agents, successors, and assigns, shall take the action set forth in the Order (268 NLRB 982).